Tag Archives: Law and Theology

Zachary Calo has posted a very generous review of The Tragedy of Religious Freedom. Zak’s penetrating criticisms of the book are well worth reading and thinking over. In particular, the interaction of theology and law is a theme that he himself has been developing over the years in superb writing. And I am coming to agree that it would have done the book some good to explore those issues more explicitly. But at any rate I am grateful to Zak for pressing these points in such a characteristically thoughtful and well-crafted way. Here is a bit from the review:

If the book does not fully diagnose the problem, it is also arguable that the logic animating the method of tragedy and history does not fully respond to the present situation. In particular, it might be that a full response needs illumina- tion from theology. Such an impulse seems at time present in the book. There are echoes of transcendence in DeGirolami’s account of tragedy and history, but the book contains unexploited resources for drawing a theological imaginary more fully into the jurisprudential task.

His account of tragedy…rests on the insight that we inhabit a moral universe in which it is not possible to fully instantiate moral goods. Yet in so proposing, DeGirolami is not simply commenting on the quandaries of practi- cal ethics, but describing what it means to act responsibly, to judge rightly and prudently, in a world defined by such limits. A jurisprudence grounded not in abstract principle, but in the lived experience of the world, cannot but confront the need to make tragic choices. “In law,” DeGirolami writes, “it is necessary that one side win and the other lose, yet the inevitability of loss does not preclude choice.” Law, DeGirolami adds, might even be “centrally about the sacrifices entailed by choice making” (p. 99). In encountering such language, one thinks of Augustine’s judge in Book 19 of City of God. Confronted by the “darkness” of making tragic choices, the judge yearns to escape the misery of the office. Yet, impelled by duty, the judge submits to unhappiness, executes the violent decisions of law, and cries out to God with the Psalmist “From my necessities deliver Thou me.” Tragedy finds a paradoxical if limited coherence only within this divine economy. Though DeGirolami never frames his account of tragedy on such express theological turns, an Augustinian impulse never seems far from the surface of his account.

A few additional thoughts on the convergences and divergences of law and the academic study of religion, prompted by thoughtful emails from legal and ASR scholars Nelson Tebbe and Donald Drakeman.

Methodological Distinctiveness

Both law and ASR may be similar in that they harbor anxieties about their methodological uniqueness and about the autonomy of their disciplines as fields of academic inquiry. In law, this has been a perpetual worry that became particularly acute in the 20th century, as scholars from Pound to Holmes to Posner have argued compellingly for law’s non-autonomy. Indeed, Posner has advocated the project of “overcoming” law: what takes the reins after law has been overcome is economics, philosophy, political science, or some other discipline with truly independent methodological bona fides (it’s mostly economics for Posner). Though it is not my field (and so I hope to be corrected by those who know better), my sense is that ASR has some of these same anxieties but in its case, the anxieties are connected to the conceptual distinctiveness of the subject matter that it studies. Certainly in law, self-justification and disciplinary apology are not unknown.

Practice and Theory: Maintaining or Collapsing the Division?

Both law and ASR have roots as practical endeavors–as trades and professions, rather than as purely academic subjects. For law this is obvious; for ASR the root is theology and ministry. And law schools and divinity schools historically functioned to prepare tradesmen; indeed, both continue to operate primarily to train future practitioners of their respective trades.

My friend Nelson Tebbe points out to me that Yale Law School Professor Paul Kahn notes some of these similarities in his book, The Cultural Study of Law: Reconstructing Legal Scholarship. Kahn’s project is precisely to help legal scholarship get over its past professional association, in much the same way that ASR has attempted to transcend its own. Here’s an interesting passage from early in Kahn’s book:

When lawyers think about contemporary legal theory, they are likely to express the view that it is too theoretical, too disconnected from the practice of law to be of any interest or use. In fact, the problem is exactly the opposite. Theory has substantially failed to separate itself from practice. The reforms offered by legal theorists may often be impractical, but the central assumption of both the scholar and the lawyer-critic is that reform is the appropriate end of scholarship. The lawyer-critic wants only to replace the poor–meaning impractical–reform proposals that emerge from the academy with better ones.

By taking up the project of legal reform, however, the scholar becomes a participant in legal practice and, therefore, a part of the very object that he or she has set out to investigate. The collapse of the distinction between the subject studying the law and the legal practice that is the object of study is the central weakness of contemporary legal scholarship. “Collapse” does not happen at a moment in time, as if there were first a separation of subject and object, which suddenly disappeared. The legal scholar comes to the study of law already understanding herself as a citizen in law’s republic. She is committed to “making law work,” to improving the legal system of which she is a part. Collapse refers to the failure of an analytic possibility, not some sort of transitional experience.

I believe that Kahn is right about this: there is a tension that permeates legal scholarship that is in some ways a product of its historical situation within a practical discipline alongside its long tradition of rigorous academic study (dating at least to the University of Bologna in the medieval period). Sometimes, legal scholars do not negotiate this tension successfully.

But where Kahn criticizes the collapse of theory into practice, one might just as readily question the collapse of practice into theory that he recommends. It has always seemed to me that one of the strengths and unique points of legal scholarship lies in its preservation of the separation of theory and practice. That is, its strength lies in negotiating that separation, and in refusing to collapse it into either constituent category. Legal scholarship is perched between two worlds, and it is only in this precarious posture that it retains both an internal and an external perspective on its subject. If it fell to one side or the other–if the separation on which it depends really did collapse– what methodological tools would the legal scholar use to analyze law? Precisely those of the economist, the philosopher, the political scientist, or the ASR scholar.

The Role of Doctrine

Likewise, as I have noted before, law schools and schools of theology or divinity are the only ones I can think of in which the idea of doctrine is intrinsically important. This is in part because these disciplines are specially attuned to the authoritativeness of the past. Other disciplines have no such commitments–indeed, their commitments may run in a very different direction. It is not clear to me what perspective ASR has on the role of doctrine, but it would not be surprising that the less closely the discipline associates itself with schools of theology or divinity schools, the more it would embrace a critical posture toward doctrine.

The other difference in this respect is that doctrine provides a coordinating function in law and theology that simply does not apply in other areas of study. This function of doctrine is, of course, connected to law’s managerial role and its internal perspective on the customs and traditions of the specific society in which it operates. This role and this orientation are not shared by most other disciplines.

‘Modern European thought’ describes a wide range of philosophies, cultural programmes, and political arguments developed in Europe in the period following the French Revolution. Throughout this period, many of the wide range of ‘modernisms’ (and anti-modernisms) had a distinctly religious and even theological character-not least when religion was subjected to the harshest criticism. Yet for all the breadth and complexity of modern European thought and, in particular, its relations to theology, a distinct body of themes and approaches recurred in each generation. Moreover, many of the issues that took intellectual shape in Europe are now global, rather than narrowly European, and, for good or ill, they form part of Europe’s bequest to the world-from colonialism and the economic theories behind globalisation through to democracy to terrorism. This volume attempts to identify and comment on some of the most important of these.

The thirty chapters are grouped into six thematic parts, moving from questions of identity and the self, through discussions of the human condition, the age of revolution, the world (both natural and technological), and knowledge methodologies, concluding with a section looking explicitly at how major theological themes have developed in modern European thought. The chapters engage with major thinkers including Kant, Hegel, Kierkegaard, Heidegger, Schleiermacher, Nietzsche, Dostoevsky, Barth, Rahner, Tillich, Bonhoeffer, Sartre, de Beauvoir, Wittgenstein, and Derrida, amongst many others. Taken together, these new essays provide a rich and reflective overview of the interchange between theology, philosophy and critical thought in Europe, over the past two hundred years.

From our friend John Inazu, we get news of the publication of the latest issue of Law and Contemporary Problems, a symposium on the work of Stanley Hauerwas and theological argument in law which John put together. Congratulations to him and to all of the contributors for their pieces. Here is a portion of John’s foreword to the symposium (footnotes omitted):

Some of Hauerwas’s critics may be right to argue that he “reacts against a type of liberalism that exists mostly on the pages of books by Rawls, Rorty, and their followers, and not in actual practice.” But that description is at least true of the academy. Much teaching and scholarship relies upon unacknowledged constraints on argumentative practices from professors who embrace the ideals of Rawlsian public reason or, more strikingly, whose epistemic commitments welcome a spectacular diversity of viewpoints and worldviews—except for theological ones. As a result, a great deal of scholarship ignores or too easily dismisses theological argument. If public reason and epistemic bias have succeeded anywhere in squelching theological argument, it is in the academy.

Contrary to the academy’s dominant orthodoxies, Hauerwas insists that Christian theology properly belongs in contemporary discourse: “[A]t the very least Christianity names an ongoing argument across centuries of a tradition which has established why some texts must be read and read in relation to other texts.” As a result, “Christians for all their shortcomings still represent an ongoing educated public that means they must . . . have agreements that make their disagreements intelligible.” It is for this reason that

[Christians] should not avoid exploring what differences their convictions might make for why they do what they do. That difference will, of course, vary from subject to subject but surely such an investigation is the kind of work a university should sponsor. I obviously think that would be true of those working in other religious and nonreligious traditions. Of course, such work would make the university more conflictual but I see no reason why that is a disadvantage. (Stanley Hauerwas, The State of the University: Academic Knowledges and the Knowledge of God 91 n.19 (2007)).

Like this:

From Charles Lemert (Wesleyan/Yale), an overview of the career of 20th Century Protestant theologian and public intellectual Reinhold Niebuhr, Why Niebuhr Matters (Yale 2011). Niebuhr has been much in the news lately as the inspiration for liberal realism in contemporary American politics; Barack Obama, among others, has acknowledged his debt to him. Niebuhr has also been the subject of other recent books, including one CLR Forum has noted. The publisher’s description follows.

Reinhold Niebuhr (1892–1971) was a Protestant preacher, an influential religious thinker, and an important moral guide in mid-twentieth-century America. But what does he have to say to us now? In what way does he inform the thinking of political leaders and commentators from Barack Obama and Madeleine Albright to David Brooks and Walter Russell Mead, all of whom acknowledge his influence? In this lively overview of Niebuhr’s career, Charles Lemert analyzes why interest in Niebuhr is rising and how Niebuhr provides the answers we ache for in the face of seismic shifts in the global order.

In the middle of the twentieth century, having outgrown a theological liberalism, Niebuhr challenged and rethought the nonsocialist Left in American politics. He developed a political realism that refused to sacrifice ideals to mere pragmatism, or politics to bitterness and greed. He examined the problem of morality in an immoral society and reimagined the balance between rights and freedom for the individual and social justice for the many. With brevity and deep insight, Lemert shows how Niebuhr’s ideas illuminate our most difficult questions today.

From the University of Chicago Press, a posthumous work by the late historian John Patrick Diggins (CUNY Graduate Center), Why Niebuhr Now? (2011), on the public theology of Reinhold Niebuhr. The publisher’s description follows.

Barack Obama has called him “one of my favorite philosophers.” John McCain wrote that he is “a paragon of clarity about the costs of a good war.” Andrew Sullivan has said, “We need Niebuhr now more than ever.” For a theologian who died in 1971, Reinhold Niebuhr is maintaining a remarkably high profile in the twenty-first century.

In Why Niebuhr Now? acclaimed historian John Patrick Diggins tackles the complicated question of why, at a time of great uncertainty about America’s proper role in the world, leading politicians and thinkers are turning to Niebuhr for answers. Diggins begins by clearly and carefully working Continue reading →

The theologian Stanley Hauerwas has described people with intellectual disabilities as “the crack I desperately needed to give concreteness to my critique of modernity. No group exposes the pretensions of the humanism that shapes the practices of modernity more thoroughly than the mentally handicapped.” Indeed, modern practices with respect to the mentally handicapped are undeniably puzzling. On the one hand, advances in the ability to prenatally diagnose genetic conditions that cause mental retardation are widely heralded and enthusiastically embraced, as evidenced by the declining numbers of children born with Down Syndrome worldwide, despite the fact that advancing maternal ages should be resulting in an increase in those numbers. On the other hand, laws that express a strong commitment to the equal treatment of our fellow citizens with disabilities continue to be enacted – from the Individuals with Disabilities Education Act in 1975, ensuring the education of children with disabilities in our public schools, to the Americans with Disabilities Act in 1990, prohibiting discrimination against people with disabilities in public accommodations and employment, to the Genetic Information Nondiscrimination Act in 2008, prohibiting employers or health insurers from discriminating based on information from genetic tests.

Hauerwas diagnoses these puzzling inconsistencies in contemporary society’s attitudes toward the disabled as evidence of the flaws of modern humanism. Humanism’s emphasis on rationality and capacity for reason is the most obvious target of any critique focused on people with intellectual disabilities, whose capacity for reason is, by definition, compromised to some degree. Continue reading →

This essay is the special editor’s introduction to a forthcoming symposium in Law & Contemporary Problems that explores the work of theologian Stanley Hauerwas and its implications for law and legal scholarship. Although not well-known in the legal academy, Hauerwas is an important scholar and public intellectual who has written scores of books and hundreds of articles, been named “America’s Best Theologian” by Time Magazine, and delivered the prestigious Gifford Lectures. He has arguably “articulated the most coherent and influential political theology in and for the North American context” and has been “at the forefront of major transformations in theology” including virtue ethics, the role of narrative and community, and understandings of medicine and illness. The inattention to Hauerwas in legal scholarship is particularly odd given that he has written for decades about issues central to thelaw: violence, liberalism, bioethics, theories of disability, theories of interpretation, capital punishment, just war theory, reconciliation, public reason, patriotism, euthanasia, abortion, and religious freedom, to name only a few of the more obvious connections. And the general lack of familiarity with Hauerwas by legal scholars (even among many of those who write in the area of “law and religion”) has contributed to a growing divide. Continue reading →